Owusu v. Michigan Department of Corrections Pain Management Committee et al

Filing 121

ORDER Adopting 95 Report and Recommendation. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Nathaniel K. Owusu,
Plaintiff,
v.
Michigan Department of
Corrections Pain Management
Committee, Corizon Health, Inc.,
William C. Borgerding, Keith
Papendick, Craig Hutchinson,
Timothy Kangas, Teri Byrne,
Corey Grahn, Bryan D. Buller,
Teresa Merling, Michael A.
Millette, Susan N. Wilson,
Danielle M. Paquette, Brown,
Heather Haapala, Oliver L.
Johnston, and Connie D. Lester,

Case No. 16-cv-12490
Judith E. Levy
United States District Judge
Mag. Judge Mona K. Majzoub

Defendants.
________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION [95]
On September 5, 2017, Magistrate Judge Mona K. Majzoub issued
a Report and Recommendation (Dkt. 95) that recommended the Court:
deny the Corizon defendants’ (Corizon Health, Inc., Papendick,
Hutchinson, Buller, Grahn, Wilson, and Paquette) motion to dismiss

(Dkt. 37), grant the Michigan Department of Corrections (“MDOC”)
defendants’ (MDOC Pain Management Committee, Kangas, Byrne,
Merling, Brown, Haapala, and Lester) motion to sever (Dkt. 60) as to
Claims VIII and XI of the complaint and deny it as to all other claims,
deny plaintiff Nathaiel K. Owusu’s motion for default judgment (Dkt.
66) and motion to strike (Dkt. 69), and deny as moot the MDOC
defendants’ motion for a protective order. (Dkt. 75.)
Also pending are the Corizon defendants’ motion for leave to file
an untimely reply in support of their objections (Dkt. 114), and
plaintiff’s motion to strike the motion for leave to file an untimely reply.
(Dkt. 116.)
I.

Background

The parties do not object to the factual background set forth in the
Report and Recommendation. (Dkt. 95 at 3-4.) Accordingly, the Court
adopts that background in its analysis.
II.

Standard

After a Magistrate Judge issues a Report and Recommendation,
“[w]ithin fourteen days after being served with a copy, any party may
serve and file written objections to such proposed findings and
2

recommendations

as

provided

by

rules

of court.

A

judge

of

the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by
the magistrate judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with instructions.”

28

U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).
III. Analysis
Plaintiff has filed a single objection: that the Report and
Recommendation erred in severing Claims VIII and XI asserted against
defendants Kangas, Haapala, and Lester. (Dkt. 100.)
The Corizon defendants have filed three objections: (1) the
Magistrate Judge erred in concluding that plaintiff’s claims were not
barred by res judicata; (2) the Magistrate Judge erred in concluding
that plaintiff stated a claim for civil conspiracy; and (3) the Magistrate
Judge erred in holding that Corizon Health and the Michigan
Department of Corrections are not the same entity. (Dkt. 98.)

3

A. Motion to File an Untimely Reply
Defendants’ reply regarding their objections was filed on
December 6, 2017, in their motion seeking leave to file the reply. (Dkt.
114.) The reply was due on or before October 2, 2017. Defendants’ only
reason for filing the reply over two months late was “an inadvertent
error or oversight.”

(Id. at 2.)

Defendants are represented by

experienced counsel, and fail to offer any reason why the Court should
excuse a two-month delay in filing their reply, particularly when these
same defendants filed a motion for the Court to sanction plaintiff on
October 17, 2017 (Dkt. 109), and a reply in support of that motion on
November 13, 2017 (Dkt. 113), which shows that defendants and their
counsel were paying attention to this matter several weeks before they
realized their reply was untimely.

The Court will deny defendants’

motion for leave to file their untimely reply, and deny plaintiff’s motion
to strike defendants’ motion for leave (Dkt. 116) as moot.
B. The Magistrate Judge Did Not Err in Granting The
Motion to Sever as to Kangas, Haapala, and Lester
Plaintiff objects that Claim VIII, in which he alleges that Kangas
retaliated against him for exercising his First Amendment right to use
4

his legal name and have that name reflected in his medical records
(Dkt. 1 at 101-109), and Claim XI, in which he alleges that Haapala and
Lester denied him access to his medical records. (Dkt. 1-1 at 28-38.)
Plaintiff argues that these claims arose out of the same transactions or
occurrences as his medical care claims, which make up the bulk of his
complaint.
The majority of plaintiff’s complaint concerns a conspiracy
between the defendants to deny him necessary medical care from 2010
through the filing of the lawsuit. (Dkt. 1 at 8.) Claims VIII and XI do
not concern this conspiracy, but instead other discrete acts governed by
different legal standards from plaintiff’s denial-of-care claims that
occurred during the period in which plaintiff alleges that he was also
denied medical care. As the Magistrate Judge correctly stated in her
analysis, claims that involve distinct factual scenarios, different time
periods, and different legal standards should be severed from a
complaint. See Fed. R. Civ. P. 20(a)(2); Prince v. Elum, Case No. 12-cv15526, Dkt. 4 at 7 (E.D. Mich. Jan. 14, 2013; George v. Smith, 507 F.3d
605, 606-07 (7th Cir. 2007).

5

These claims are related to plaintiff’s medical care, but do not
arise out of the same events giving rise to his denial-of-care claims.
Further, as First Amendment and Michigan state law claims, they
involve wholly different legal standards than plaintiff’s other claims.
Plaintiff cites Cary v. Robinson, Case No. 13-cv-431, Dkt. 47 (W.D.
Mich. Sept. 23, 2014) in support of his argument that these claims
should not be severed.

In Cary, the plaintiff alleged that a First

Amendment retaliation claim arose directly out of a claim that prison
staff took his religious medicine bag. Id. at 3. Those claims were kept
together and not severed. Id.
That court did, however, sever a claim that he was denied medical
and dental treatment from the plaintiff’s retaliation and Religious Land
Use And Institutionalized Persons Act claims. Id. at 2-3. Just as in
this case, the Cary court determined that a denial of medical care claim
should be severed from claims alleging retaliation in violation of the
First Amendment, among other claims.
The

Court

overrules

plaintiff’s

objection

and

adopts

the

Magistrate Judge’s Report and Recommendation as to the severance of
Claims VIII and XI.
6

C. The Magistrate Judge Did Not Err in Determining
That Plaintiff’s Claims Against The Corizon
Defendants Are Not Barred by Res Judicata
The Corizon defendants argue that the Magistrate Judge erred in
determining that plaintiff’s claims are not barred by res judicata.
Plaintiff filed a previous actions in this district: Owusu v. Pandya, Case
No. 09-cv-13511. In that case, filed in 2009, plaintiff alleged that he
was denied adequate medical care because he was not provided with
Ultram, a prescription pain medication. The Pandya court determined
that summary judgment was warranted as to plaintiff’s claims
regarding inadequate medical care. Porter v. Pandya, Case No. 09-cv13511, 2010 WL 3464709 (E.D. Mich. Aug. 31, 2010).
“A final judgment on a claim is res judicata and bars relitigation
between the same parties or their privies on the same claim.” Westwood
Chem. Co., Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981). “It bars
relitigation on every issue actually litigated or which could have been
raised with respect to that claim. To constitute a bar, there must be an
identity of the causes of action[;] that is, an identity of the facts creating
the right of action and of the evidence necessary to sustain each action.”
Id. (citations omitted).
7

The Corizon defendants argue that because plaintiff mentions
Ultram and his underlying medical conditions at various points in his
complaint, every claim in his complaint should have been asserted in
2009. However, the Court’s review of plaintiff’s complaint makes clear
that, at this juncture, res judicata does not bar his complaint.
For instance, in Claim VII, alleging a policy, practice, and custom
of deliberate indifference to plaintiff’s medical needs, plaintiff alleges
that defendants removed Ultram from the formulary. (Dkt. 1 at 85.)
However, plaintiff also alleges that defendants “reduced to near-zero
the use of MRIs, and other imaging tools” that would have been useful
in treating his condition, which was not alleged in plaintiff’s prior
lawsuit.

(Id.)

Plaintiff also mentions policy changes and failure to

comply with state guidelines that allegedly led to or exacerbated the
denial of necessary medical care. The relevant changes and guidelines,
according to the complaint, were not adopted until 2013 at the earliest –
four years after plaintiff filed his first lawsuit, and three years after
final judgment was entered in that lawsuit. (Id. at 85-86.) Plaintiff
mentions specific denials of medical care that occurred in 2014 and

8

2015. (Id. at 87-88.) He further mentions substantial changes in his
condition that began in 2012. (Id. at 88.)
The Corizon defendants do not address the depth or breadth of the
new allegations and events alleged in the complaint that could not have
been asserted in 2009.

Instead, they rely on plaintiff’s periodic

references to the denial of Ultram, litigated in his previous case, to
allege that every new allegation in his current complaint should have
been litigated in his prior case. On review of the complaint, the Court
views plaintiff’s references to the denial of Ultram beginning in 2009 as
background facts supporting his new claims, which are based on facts
and evidence that did not exist in large part until years after plaintiff
finished litigating his previous case. It may become clear later that
plaintiff’s claims are, in reality, an effort to re-litigate Pandya, but at
this juncture, they appear to be distinct claims that are not barred by
res judicata. This objection is overruled, and the Magistrate Judge’s
Report and Recommendation is adopted as to this point.
D. The Magistrate Judge Did Not Err in Disregarding
The Corizon Defendants’ Undeveloped Argument
Regarding Insufficient Pleading of The Civil
Conspiracy Claim
9

In their motion to dismiss, the Corizon Defendants argued that
plaintiff’s civil conspiracy claim, Claim IX, should be dismissed. (Dkt.
37 at 22.) Their argument was that the allegations in his complaint
“fail[ed] to meet the minimum pleading requirements necessary to
support a civil conspiracy claim; and as a result, this Court should
dismiss this claim.” (Id.) The Corizon defendants then argued that the
claim was barred by the intra-corporate conspiracy doctrine. (Id. at 2223.)
The Corizon defendants now object and state that their cursory
allegation of inadequate pleading was a completely separate argument
for dismissal from their intra-corporate conspiracy argument.

The

Corizon defendants argue that the Magistrate Judge overlooked their
single-sentence

argument

about

the

insufficiency

of

plaintiff’s

allegation, and that plaintiff failed to respond to this separate
argument, thereby waiving any objection to dismissal of the civil
conspiracy claim.
Asserting that a plaintiff has failed to meet the pleading
standards necessary to survive a motion to dismiss under Fed. R. Civ.
P. 12(b)(6) without specifically indicating how or why the pleading is
10

insufficient is not an argument a plaintiff can respond to, nor is it an
argument a court can analyze.

Further, the motion to dismiss was

written in a manner that appeared to argue that the civil conspiracy
claim failed to meet the pleading requirements under Fed. R. Civ. P.
12(b)(6) because it alleged an intra-corporate conspiracy. (Dkt. 37 at 2224.)

It was entirely reasonable for the plaintiff and the Magistrate

Judge to read that section of the motion to dismiss as presenting only
an argument regarding intra-corporate conspiracy.

Either way, the

Corizon defendants failed to make any argument regarding the
insufficiency of the pleading other than the intra-corporate conspiracy
argument.

Neither plaintiff nor the Magistrate Judge had any

obligation – or ability – to address arguments that were not made in the
motion to dismiss.
The Magistrate Judge did not err in her analysis that the Corizon
defendants “[did] not provide any factual analysis to support their
argument in this regard.” (Dkt. 95 at 9.) This objection is overruled,
and the Report and Recommendation is adopted as to this point.
E. The Magistrate Judge Did Not Err in Determining
That The Intra-corporate Conspiracy Doctrine Does
Not Apply
11

The Corizon defendants argue that the Magistrate Judge erred in
relying on Vinson v. Mich. Dep’t of Corr., Case No. 14-cv-11130, 2015
WL 9897844 (E.D. Mich. Oct. 30, 2015) in determining that plaintiff’s
civil conspiracy claims are not barred by the intra-corporate conspiracy
doctrine. In Vinson, Magistrate Judge Michael Hluchaniuk determined
that the defendants in that case did “not explain how MDOC and
Corizon are the ‘same legal entity’,” and that it was “clear that they are
not.” Id., at *10.
The intra-corporate conspiracy doctrine states that “an entity
cannot conspire with its own agents or employees.”

United Food &

Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738, 753
(6th Cir. 2004) (citation omitted). The Corizon defendants argue that
Corizon and the MDOC “make up the relevant legal entity in this
matter,” and direct the Court to the contract between Corizon and the
State of Michigan to argue that Corizon and its employees are agents of
the State of Michigan and/or MDOC. (Dkt. 98 at 13 n.3.) As set forth in
Vinson, they are not.
The contract between the State of Michigan and Corizon states:
2.027 Relationship of the Parties The relationship
between the State and Contractor is that of client and
12

independent contractor. No agent, employee, or servant of
Contractor or any of its Subcontractors must be or must be
deemed to be an employee, agent or servant of the State for
any reason. Contractor will be solely and entirely responsible
for its acts and the acts of its agents, employees, servants
and Subcontractors during the performance of the Contract.
State of Michigan Contract No. 071B9200147 at 76, available at
http://www.michigan.gov/documents/buymichiganfirst/9200147_266870
_7.pdf (last viewed on January 30, 2018). By the express terms of the
contract governing the relationship between Corizon and the State of
Michigan, neither Corizon nor its employees are part of the “same legal
entity” as the State of Michigan. 1

Further, the Sixth Circuit has

declined to extend the intra-corporate conspiracy doctrine to claims
brought under 42 U.S.C. § 1983, as plaintiff’s civil conspiracy claim is.
Woodcock v. City of Bowling Green, 679 F. Appx. 419, 425 (6th Cir.
2017).
This objection is overruled, and the Magistrate Judge’s Report and
Recommendation is adopted as to this point.
F. Borgerding and Kerstein’s Motions to Sever
The Court notes that for the purposes of constitutional claims asserted via 42
U.S.C. § 1983, a private actor may be deemed to act under color of state law for
their joint engagement with the state in prohibited actions. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 152 (1970). This does not make the private actor an agent or
officer of the state. Id.
1

13

Due to service issues, defendant William C. Borgerding was not
able to join in the MDOC defendants’ motion to sever. (Dkt. 60; see also
Dkts. 62 (directing service as to Borgerding) and 63 (acknowledging
receipt of service of process by Borgerding).)

Defendant Gary R.

Kerstein was likewise unable to join in that original motion. (See Dkts.
62, 63, 72, 101.)
Borgerding, an MDOC employee, seeks to join in that motion to
sever. (Dkt. 97.) Borgerding is named as a defendant in relation to
Claim IV. (Dkt. 1 at 45-60.) Kerstein, also an MDOC employee, also
seeks to join in that motion to sever. (Dkt. 119.) Kerstein is named as a
defendant in relation to Claims IV, V, VI, and IX. (Dkt. 1 at 45-84, 109110; Dkt. 1-1 at 1-22.)
For the reasons set forth in the Report and Recommendation
determining that severance of these claims is not warranted (Dkt. 95 at
12-14) and adopted here, Borgerding and Kerstein’s motions are denied.
IV.

Conclusion

For the reasons set forth above, it is hereby ordered that:
Both plaintiff and defendants’ objections are OVERRULED;
The Report and Recommendation (Dkt. 95) is ADOPTED;
14

The Corizon defendants’ motion to dismiss (Dkt. 37) is DENIED;
The MDOC defendants’ motion to sever (Dkt. 60) is GRANTED as
to Claims VIII and XI of the complaint and DENIED with regard to the
other claims;
Claims VIII and XI and defendants Kangas, Haapala, and Lester
are SEVERED AND DISMISSED WITHOUT PREJUDICE;
Plaintiff’s motions for default judgment (Dkt. 66) and to strike
(Dkt. 69) are DENIED;
The MDOC defendants’ motion for a protective order (Dkt. 75) is
DENIED AS MOOT;
Borgerding and Kerstein’s motions to sever (Dkts. 97, 119) are
DENIED; and
The Corizon defendants’ motion for leave to file an untimely reply
(Dkt. 114) is DENIED and plaintiff’s motion to strike the motion for
leave (Dkt. 116) is DENIED AS MOOT.
IT IS SO ORDERED.
Dated: February 8, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

15

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 8, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

16